01A12439_r
06-29-2001
David L. House, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David L. House v. United States Postal Service
01A12439
June 29, 2001
.
David L. House,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12439
Agency No. 1D-404-0017-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On July 21, 2000, complainant contacted the EEO office regarding claims of
discrimination in reprisal for prior protected activity. Informal efforts
to resolve complainant's concerns were unsuccessful. Subsequently, on
September 16, 2000, complainant filed a formal complaint. The agency
framed the claim as follows:
On unspecified dates, the APWU Vice President verbally harassed
complainant. After several reports to management, in December 1999,
he told management that he wanted to file an EEO complaint. He was lead
to believe that they were doing it for him.
On January 26, 2001, the agency issued a decision dismissing the complaint
for untimely Counselor contact. The agency determined that complainant
contacted the EEO office approximately 203 days after the alleged December
1999 action. Further, the agency noted that
EEO posters were on display and there was no evidence that complainant
was unaware of the time limitations.
Complainant presents no contentions on appeal.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, complainant maintains that the agency contributed to his untimely
Counselor contact, by leading him to believe that they were filing an
EEO complaint on his behalf. A review of the Counselor's Report shows
that, according to complainant, he informed his immediate supervisor
about alleged verbal harassment by a co-worker on August 25, 1999; and
that management failed to address the problem. Thereafter, on December
20, 1999, complainant notified his supervisor and the plant manager
that he was again being harassed by the employee, and that he wanted
to file an EEO complaint. Complainant contended that his supervisor
told him he would prepare the EEO complaint paperwork; but that when
complainant inquired the next day, the supervisor allegedly told him he
was still working on it. Complainant contended that the second day,
the supervisor indicated that he was not sure if it was an EEO claim.
Based on complainant's own assertions, we find that he should have
contacted the EEO office more than forty-five days before his July 21,
2000 contact. Complainant has failed to provide sufficient justification
for tolling or extending the time limit.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 29, 2001
__________________
Date